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Responding to suggestions that the “fair use” defence in US copyright law should be exported to other jurisdictions, this article scrutinises the different ways in which the defence has been applied in decisional law. Fair use cases fall into two broad categories. First, the defence has been applied to ensure that the exercise of the copyright monopoly does not significantly fetter downstream creativity by other authors. Here, the prevailing doctrine requires that the defendant’s use be genuinely “transformative”, which, at the very least, requires the defendant to be using the plaintiff’s work in new and creative ways – transforming it into something new. Secondly, fair use has been applied to new technological innovations – such as digital search engines – that do not themselves transform the underlying works, but instead often provide new ways of disseminating copyright-protected material. The paper argues that only the first use of the fair use defence is consistent with traditional fair use doctrine. Accordingly, if policy makers anticipate that fair use should be applied in a way that shields technological entrepreneurship from copyright litigation, they ought to make that clear. Even if that approach were adopted, however, it is questionable whether fair use litigation is an appropriate vehicle for facilitating technological development. The final part of the article explores some of the problems that might arise through this kind of “economic regulation through litigation.”

Date posted: December 21, 2012
; Last revised: January 16, 2013

Suggested Citation

Austin, Graeme W., The Two Faces of Fair Use (December 14, 2012). New Zealand Universities Law Review, Vol. 25, p. 285, December 2012; Victoria University of Wellington Legal Research Paper No. 1/2013. Available at SSRN: http://ssrn.com/abstract=2192277